045111.U

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-5111
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
NELSON ROSADO, a/k/a Day-Day,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Marvin J. Garbis, Senior District Judge.
(CR-03-335-MJG)
Submitted: February 28, 2006 Decided: July 3, 2006
Before NIEMEYER, MICHAEL, and GREGORY, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Harry D. McKnett, Columbia, Maryland, for Appellant. Rod J.
Rosenstein, United States Attorney, Paul M. Tiao, Assistant United
States Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).

-- 1 of 3 --

- 2 -
PER CURIAM:
Nelson Rosado pled guilty to one count of conspiracy to
distribute cocaine base. He was sentenced to a term of seventy-two
months’ imprisonment. Rosado appealed, and subsequently filed a
motion to remand requesting that his case be returned to the
district court for resentencing in accordance with United States v.
Booker, 543 U.S. 220 (2005).
Rosado contends that the appellate waiver set forth in
his plea agreement was modified by comments made by the district
court during the plea colloquy and sentencing hearing. The United
States’ silence in the face of those comments, he asserts, operated
to alter the plea agreement and permit him to appeal. We have
thoroughly reviewed the record and conclude that this contention is
without merit. Next, Rosado argues that the district court
sentenced him in violation of Booker by treating the guidelines as
mandatory. Our review discloses that any Sixth Amendment error
arising from Rosado’s sentence is harmless. See United States v.
Rodriguez, 433 F.3d 411, 416 (4th Cir. 2006). Holding Rosado
accountable for the fifty grams of cocaine base set forth in the
indictment to which he pled guilty, the resulting guideline range
would still be higher than the seventy-two month sentence imposed.
Thus Rosado was not prejudiced by the alleged Booker error.
We accordingly grant the Government’s motion to dismiss.
We deny Rosado’s motion to remand and dispense with oral argument

-- 2 of 3 --

- 3 -
because the facts and legal contentions are adequately presented in
the materials before the court and argument would not aid the
decisional process.
DISMISSED

-- 3 of 3 --